When Is An Image 'Manipulated Enough' To Become An Original Creation?

from the tricky dept

Images manipulated using programs like Photoshop or the GIMP are a familiar sight online. Indeed, the ease with which images can be modified has led to an amazing flowering of this new branch of the visual arts. But like much in the digital world, this brings with it problems. Here, for example, is the interesting case of a competition on the MINI Space site, which is run by BMW as an oblique form of marketing for its Mini car. An article on the PetaPixel photography blog explains what happened when the site invited submissions on the theme of "check-mate" (pointed out to us by @copyrightgirl). Here's "PapiloChessBoard", the photomanipulated image that gained the winner a MacBook Pro laptop:

Collins was never contacted for permission, and he never allowed his photo to be manipulated and published without attribution -- much less as an entry in a contest. (He did Creative Commons license the photo, but required that any use carry attribution).

Initially, the MINI Space site seemed untroubled by this fact:

We hear that the contest was contacted by the second place winner regarding the violation. Their response was that the photo was not a violation of the rules or copyright due to the fact that it was "manipulated enough" to qualify as original artwork.

After the "Check-Mate" winners were announced, it came to our attention that the first place entry was in violation of our competition rules. MINI Space values its community above all else, and as such, the original winning entry "PapiloChessBoard" has been disqualified retroactively.

Since the original photo's attribution was not included, there's no doubt that the modified image breaches the CC licensing terms, even though they were hardly onerous. But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right. Of course, that's not a new question, but the ease with which photomanipulation can now be carried out to create complex re-workings of existing images means that it's one that is likely to be posed increasingly frequently.

Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

Several problems with that idea.

First is that it turns "the first creator" into the judge, which not only makes the judicial system irrelevant, but also places the adjudication in the hands of someone who, not only has a vested interest in the case, but is also the aggrieved party. That is a huge no-no.

Second, the first creator may not even be the one who holds the copyright on the original creation, if said copyright has been transferred to another party. In the case of music, we have seen numerous examples where the musicians themselves are perfectly fine with their work being manipulated, but their labels, who hold the copyright, are not.

Third, every "first creator" will have a different standard for when they consider a work not manipulated enough. Some will consider any use of their work to be infringing, regardless of how close to the original the new work sounds or looks. In effect, this results in a widely inconsistent standard that is impossible to determine until after the new work has been produced. It's the same problem as fair use: it's only a defense, and doesn't prevent someone from being lawsuit-happy.

Forth, even if it's not recognizable to the first creator (or copyright holder), another party may inform said creator that, in the opinion of that second party, the work is not manipulated enough. This could change the viewpoint of the first creator, especially if they stand to gain financially from following along with the second party.

Fifth, nothing's stopping the first creator from claiming that another work is a manipulation of their work, even if the two only share vague similarities and the second work had nothing to do with the first.

In short, your definition is too vague, undermines the judicial system, and would cause unacceptable chilling effects on artistic expression.

Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

There's a sixth point that comes to mind - what if the first creator is not available to make a judgement (e.g. dead or eyesight has become too poor to make a judgement)? Would that standard make any work based on work by dead or disabled artists automatically legal or automatically illegal?

Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

First is that it turns "the first creator" into the judge

It did not in this case !!!!

Second, the first creator may not even be the one who holds the copyright on the original creation

That's right, it is true and a FACT that your ownership of the copyright is the point, not who created it. It's just the way it is, people are allowed to sell what they own, including copyright. Makes no difference in this case, and a creator who has sold the copyright to his creation has not more rights to use it as you or me.

Third, every "first creator" will have a different standard for when they consider a work not manipulated enough

They will, but it is not them who decides that, that judgment is always up to someone else, just like if someone stole your car, you can decide who did it, or that it was done, but it's not up to you to determine guild or innocence, or to impose punishment.

It would not even be the creator anyway, it would be the copyright holder, and as we've previously determined they do not have to be the same people.

Forth, even if it's not recognizable to the first creator (or copyright holder), another party may inform said creator that, in the opinion of that second party, the work is not manipulated enough. This could change the viewpoint of the first creator, especially if they stand to gain financially from following along with the second party.

that's your point 3, and it's still wrong, you may have your car stolen, that may have been identified by a third party (or the police). You may have noting to do with identifying the breach of law, or that a breach has even occurred (you might not even know your car is stolen).

None of this makes the act (car theft) any less illegal.

Fifth, nothing's stopping the first creator from claiming that another work is a manipulation of their work, even if the two only share vague similarities and the second work had nothing to do with the first.

same as point 3 and point 4, nothings stopping ANYONE making that claim, then it is up to the court, to determine guilt or not.

In short, you do not get the point of all your points..

Sixtly, it's OBVIOUS this is a knockoff of the original, even someone with the brains of a Masnick could work that out.

This guy, (who entered this contest is simply a CHEAT, and FRAUD, and tried to get away with STEALING a prize.

He should not of only been disqualified from the contest, but he should have been referred to the law, for investigation and possible fraud charges.

Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

You had some points, even if they came close to be overshadowed by your usual obnoxious attitude. Then you had to switch to outright misdirection and personal attacks at the end, lowering your rank back down to complete tosser.

Keep at it, you're almost making some points, but acting like an obnoxious ass still isn't doing you any favours if you want people to take you seriously.

"if someone stole your car, you can decide who did it"

Really? Most people would allow evidence and investigation to reveal the true culprit, rather than who you decide to blame. Facts are facts, not something to be decided by your on a whim. I suppose that's consistent with your tendency to attack innocent 3rd parties for the infringement actions of others, though.

Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

worst. car analogy. ever.

you're talking about a situation where we have already determined that it was illegal. therefore, you entire analogy is completely useless as the whole purpose of the discussion is to discuss at what point something crosses the 'line of legality.' you're comparing the situation to one that is already illegal. that leaves absolutely no discussion and makes every point you tried to discuss useless because it restructured the argument to say something it did not. You did one or more of the following: didn't understand the viewpoints you were arguing against, don't understand the actual concepts involved, don't understand your own arguments, or you're a manipulative sophist with some ulterior motive.

Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

It is worth noting that the current situation is often more onerous than what you propose. In music sampling, for example, there is no requirement that the creator even notice the sample. Notorious sample copyright trolls like Bridgeport (which owns -- though that's questioned -- the George Clinton catalogue) and Tuf America (the ones who sued the Beastie Boys last year) operate by buying up the rights to old jazz and funk records, then having their computers crunch through hours of audio from sample-based records to look for tiny sonic matches. Indeed, in a landmark 90s case involving Bridgeport, the court specifically rejected the argument that an "unrecognizable" sample is not infringing, and the standard ever since then has been "get a license or don't sample"

Re: Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

This depends too heavily on the accidents of the psychology of the "first creator" -- in particular his vested interests.

It's preferable to try to squeeze some of the subjectivity out by referring to a "reasonable man" or "neutral third party" as the notional bearer of judgement. There is still tons of subjectivity left !!

Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

"When the degree of manipulation produces a result which is not recognizable by its first creator as being of their creation."

Not a good standard, far too subjective and it depends on the work being created before a judgement can be made about whether it meets the standard. Any standard should be objectively testable, and be understood by a potential new artist before attempting a new work, not finding out after the work has been done that it's unreleasable.

As examples, in music, some artists don't mind if half the song is used as long as attribution is given, others have thrown fits over samples lasting less than a second. Others don't seem to notice for a couple of decades then launch lawsuits when they suddenly notice similarities. Others still have no problem - until the new artist finds financial success, then there's suddenly issues.

Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

if the original work is unique the author will recognize it regardless how much you altered. And if you manipulate it to the point you cannot link it to the original then is it really a derivative of that original or an entirely new original in itself?

Re: Re: ":When Is An Image 'Manipulated Enough' To Become An Original Creation?"

The standard here should work with all forms of media - pictures, moving pictures with sound, and audio. How many songs have been released where the person who claims they were copied didn't notice for years?

In the end, it comes down to "how many bits are copyable" as well as how much of the 'general' expression, both of which are horribly subjective.

Here's a nice video where they talk a lot about how to (as a photographer) protect one's self from a lot of the bad clients in the world. Though these protections also include protection against third parties.

Basically, there's no amount of changing that makes it original work. If someone took a picture, it's theirs and any derivatives are under their control as well. If you want to use the picture, either get the rights to do so or grab a camera and take your own picture.

However, at another point in the video they talk about a case where the image is not copyrightable because it was a Thomas the Train toy on a white sweep and there was nothing to copyright (the toy was separately registered for copyright by a different entity). Seems to me to be a quite similar scenario (though this image appears to have some lens flare). Anyway, don't let me confuse things, probably should just watch the video or read their book or follow their blog.

I know this blog is somewhat anti-over copyright, but I like to think these guys aren't saying (if you watch the whole video) "sue everyone," but rather, these are the tools that are available to you.

Re:

one doens't own every derivative work of their original. you do not necessarily need to get the rights of the original photographer either, its just safer because of the 'sue everyone', culture. Plus, its still subjective if you have put enough of your own creativity in it. Moreover, you only own copyright on the artistic elements of a photograph, not the photograph itself, which is another issue with what you're saying. I can't watch the video right now as it's blocked where I am, though i can at least tell that what you took from it is incorrect. So either they were misleading, wrong, or you misunderstood. Either way, it means the video most likely failed.

Re:

As you point out, there is an inherent hypocrisy in the attitude of such photographers.

If no amount of changing a photo is sufficient to make it an original work, then how is any mount of photographic creativity sufficient to make a visual copy of something that exists in the world an original work?

Like a moth to the flame...

Im no expert in image manipulation, but he managed to make the moth's naturally rounded spots square. That seems like a pretty impressive feat. I would certainly consider it "original" given the amount of work probably required to make it look like that.

BTW, its a Giant Leopard Moth, and it has a nearly 3 inch wingspan. There are a lot of pictures of this species around the web, are they sure its the same individual in both pictures?

YOU CANNOT COPYRIGHT NATURE!!

I think you're right about this, the original is a creature of nature; and as such cannot be copyrighted.

Okay, so the setting: leopard moth on a white background. Sorry, no: if you can copyright "white backdrops", we're all screwed.

Shot angle?? Again, impossible to copyright: that would knock out so many camera angles used in so many ways, that it would bring everything grinding to a halt, and likely lead to an angry mod beheading the photographer and his legal team.

The picture itself: okay, possible. But, unless the second user took the actual photograph, on it's original media, and manipulated it in such a way where it was OBVIOUS it was the original work, then you may have a case. But it wasn't the original media: it was a digital copy, which was apparently (KEY WORD HERE--he might've used a completely different image) reversed, then significantly modified to the point where the salient identifying features of the moth were TOTALLY obliterated, and then a completely new set of salient features digitally "painted" on, making the secondary (if indeed it is secondary) image a totally new image, without any real relation to the original.

Somebody really screwed the pooch here, and it was two: the Mini site, and the mental photographer. Too bad the original artist got screwed.

Re: Re: YOU CANNOT COPYRIGHT NATURE!!

The salient part of your linked article is this:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.

If photographers wish to get defensive and bitchy about "copyright" and "inspiration", then they might as well throw away their cameras and give it up altogether.

Re: YOU CANNOT COPYRIGHT NATURE!!

But, unless the second user took the actual photograph, on it's original media, and manipulated it in such a way where it was OBVIOUS it was the original work, then you may have a case. But it wasn't the original media: it was a digital copy, which was apparently (KEY WORD HERE--he might've used a completely different image) reversed, then significantly modified to the point where the salient identifying features of the moth were TOTALLY obliterated, and then a completely new set of salient features digitally "painted" on, making the secondary (if indeed it is secondary) image a totally new image, without any real relation to the original.

First, you can certainly obtain a copyright on a photograph of nature. Like all of Ansel Adams's works. See Burrow-Giles Lithographic Co v. Sarony. While most of the elements in isolation are not protected expression, the composition as a whole certainly is. If the contestant went out, got his own moth, and shot his own photo, he would have been fine. This wasn't hard to avoid. But by using an existing work, he instead created a derivative work, entangling the copyright controls of the original work, rather than a completely new work.

Second, the medium of storage doesn't make a difference. The original photographer's rights in a digital copy of his work are essentially the same as the original "film" version. It's either a derivative work or the same work fixed in a different medium, and, either way, he has the full set of copyright controls on that work.

Third, I think it's incorrect to claim there's no "real relation to the original". You pretty much laid out how you get from the original image to the contest image- reverse across the vertical axis, and stretch out the spots to make it more grid-like.

Re: Re: YOU CANNOT COPYRIGHT NATURE!!

Actually, the original spots were completely obliterated, then replaced with a completely different set of spots.

And, either way, you just put an argument that does nothing to support the doctrine of fair use.

So what if the person used the original as a source? Flipping the image, obliterating the original spots, creating new ones that do not exist in the original image, or in nature, makes the new image original work.

If anything, the photographer should be happy his image was used. Should the second user have attributed the source? Perhaps. And that's an easy fix. But to pitch a fit to the point where a truly creative work was thrown out in a fit of pique?

Sorry, he's being a bitch, and so was BMW/MINI. It was absolute genius that he came up with that, and the judges obviously agreed. But because he used an image that someone else decided wasn't freely usable (oh, gee, I guess we need to pay a fee every time we look at it, too), a specially after putting it out on CC??

Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

Well, you never mentioned fair use- only the eligibility for copyright of the image. And arguing that the contest image was fair use is very different than arguing that the original image wasn't protected by copyright. All your statements about backdrops, shot angles, and general lack of originality only address the copyright, not whether or not the transformation was fair use.

Flipping the image, obliterating the original spots, creating new ones that do not exist in the original image, or in nature, makes the new image original work.
No, it makes it a derivative work with new original elements. If the contestant wanted to make a completely new work, he (she?) should have started with their own photo. Instead, there was transformation of an existing work. Reflecting around an axis, changing the shading, squaring the dots, etc. all amount to editing a pre-existing work and creating a derivative work.

"[Did] not exist in the original image" is not the correct standard. Suppose I use photoshop to make the negative of the original image- so every pixel is different and does not exist in the original image. Is that a new work? Yes. Is that a derivative work? Yes.

While there can be a lot of new original creative expression in the derivative work (for which the second artist can receive copyright protection), that doesn't obviate the infringement on the original work or the ability of that copyright holder to act on it.

Whether or not the photographer is just "being a bitch", that's his choice. There are only a few compulsory licenses in the copyright code, and this wasn't one of them.

Regarding the CC license, if you violate the terms of the license, then you're not protected by it. For example, that's the point behind the GPL- if you want to use my copyrighted computer code, then you can, subject to the GPL conditions. If you violate those conditions, then you are outside the scope of the license and are committing copyright infringement. In this case, it was a photograph and not computer code, but the same concept applies.

Re: Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

The fact is that both of you are right. The key is that there is a big difference between "derivative" and "transformative" -- you've used the terms interchangeably here, but they are in fact very distinct.

A work that builds upon another work is "derivative" (must license the original copyright, or else be infringing) until it reaches a certain level of change such that a court sees it as "transformative", at which point it is no longer considered to be infringing on the original.

The question of where that line is drawn is not simple or fully resolved. Different circuits have different standards, different judges will see things in different ways, and different artistic media have wildly different precedents. Copyright law lays out various tests for determining if a work is transformative, but they are not clear-cut and a lot of discretion resides with the judge -- so it's not just as simple as "get congress to change the law" (though that is certainly still a good goal).

Re: Re: Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

Yes, "derivative" and "transformative" are distinct terms, but neither are they mutually exclusive. In fact, "transformative" works are a subset of derivative works.

A “derivative work” is a work based upon one or more preexisting works, such as a ... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. 17 USC 101, emph. added

Definitionally, the contest image was a derivative work of the original image.

Second, there isn't a transition from derivative to transformative. Even if the contest image were to be considered fair use, it is still a derivative work of the original image, but a non-infringing derivative work. Moreover, the transformative aspect of a derivative work is only one part of the fair use analysis. So you can transform a work to an extremely high degree and still fail on a fair use claim- that is, you would have a highly transformative but infringing work.

Lastly, while I agree that copyright law has a lot of gray areas, the claims that (a) the original photo couldn't be copyrighted (the title of this thread is "YOU CANNOT COPYRIGHT NATURE!!") and that (b) "creating new ones that do not exist in the original image, or in nature, makes the new image original work" are just plainly incorrect according to current law.

Certainly while a new, non-derivative work would be non-infringing, you can also have non-infringing derivative works. And trying to shoehorn the contest image into the former category just won't work definitionally- they started with the original image and photomanipulated it- that's a derivative work under copyright law. Whether or not it is fair use is a completely separate issue.

Re: Hmmmm...

Re: Re: Hmmmm...

no one ever said art had to be difficult. Difficulty should not be the determination of whether its original or not. It's ridiculous to even assume so. I could easily tell you that the act of taking the original photo took a second at best. If he did touchups afterward, so be it, but nonetheless, if this one where the guy changed physical attributes of the insect is easy, then so were the touchups then. Therefore, I conclude that the picture was *really* easy to take. And considering its just a picture of nature and he didn't do *hard* work, it should therefore not be copyrighted.

See what happens when I take your point of view to its logical conclusion? It fails.

Re: Re: Re: Hmmmm...

exactly...
picasso (and others, especially magritte) made what is sometimes called 'found art'...

exempli gratia: picasso had a piece which was an old-school drop handlebar and bike saddle which were attached such that it was evocative of a bull's head...
the inspiration to see that is one thing (where his genius lay); but i bet it took him all of five minutes to assemble it...
yet it is still an inspired piece of 'art', all the same...

To boldly say what needs to be said; if even ONE PIXEL is changed that is enough to for an original works rights claim (copymite, right)

Artwork digital recovery; through scanning (for whatever reason like preservation/backing up or whatever) several artifacts are unavoidable incurred. An artist may take it upon themselves to “clean up” the scan with an image editor like GIMP. (open sourced quality editor) Its conceivable that a lazy artist would only see one pixel that needs to be erased/changed/modified.

Artistic talent; Comedy/Humor/art-vision. Installing/removal parts of and manipulation of an image for whatever reasons is normal. Its at least conceivable that while working on an tiny blog avatar that a single pixel will change significantly the images character.

Evil Intent; (attempt at dark humor); Got something to hide? Edit the data. Remove or change a photo (like Iran's mythical jet fighters) for propaganda. Just adding or removing one incriminating or misleading pixel gives an whole new visual perspective ripe for exploitation.

Whether or not an original artist gives permission to publish any of their works is irrelevant to the issue of a new copyright of which the new copyright has complete control of the distribution rights pertaining to the style and character of the revision (only) on the original work.

Interestingly enough the changes (easily electronically sorted out from the original copyrighted work) may be published without any violation and later recombined/overlapped with the original artwork later on. (am on to something here its got to be a patentable idea.)

Since on the digital level the change of even one tiny single supposedly insignificant pixel can be exactly identifies and labeled as unique it constitutes original work thus copyright-able however silly or pointless it seems. At the digital level its nonsense to use comparisons to analog legal considerations. (lots to expand/expound upon here)

All claims of the original artist that any of their works is a modification or their work is irrelevant. Only charges of publication in violation of Free Use Rights are valid.

Re:

Interestingly enough the changes (easily electronically sorted out
from the original copyrighted work) may be published without any
violation and later recombined/overlapped with the original artwork
later on. (am on to something here its got to be a patentable idea.)

Great post, but I think I can improve it as follows. I will store only the changes.

base> cp old new
base> emacs new
base> diff new old
4c4
< later on. (am on to something here its got to be a patentable
---
> later on (am on to something here its got to be a patentable
base>

Re: Re:

It seems to me that the issue here is not copyright for the purpose of law, but originality and proper credit for the purpose of honor (winning a contest).

A contest organizer who makes the legal aspect of copyright the centerpiece of their rule-making is a kind of goody-two shoes, in my view -- not really an artist kind of person. You should be allowed to submit anything you please, even modified by "one pixel" as suggested in an earlier post.

On the other hand, it's quite reasonable to require your submission to come with transparency over sources -- kind of like in the academic world, where copying is essential, but credit equally so.

Knowing your sources will then have a profound effect on the contest judge. Depending on their expectations and the type of contest, the image above -- the beetle with squares -- may look like a mere download, or a brilliant piece of transformation.

Besides the question of novelty, there's the aspect of crediting the first level creator. In a formal contest, it's kind of poor manners to leave this out, could even be put in the rules.

In short, we support a world of rampant and massive copying, but it's what you add that gets noticed.

Re:

:

"On the other hand, it's quite reasonable to require your submission to come with transparency over sources -- kind of like in the academic world, where copying is essential, but credit equally so."

:

This, essentially. The new image is quite creative in itself and it's clear that the contest winner had some inspiration that Kevin Collins lacked - or he could have modified his pic, submitted it and won instead.

That's not to take away from Collins' amazing photograph. But both 'artists' have contributed something - Collins took the photo and the contest winner took it a step further - this is essentially what Disney does with it's movies and no-one bats an eyelid because "it's Disney"/"they're old works"/"they're public domain" (take you pick).

The flaw here is not in the reproduction of CC work - it's the non-attribution - but did the entry form even allow for providing an attributable source?

The world has yet to adjust to an age in which copying is as easy as "cp" and some artists want to give away for free but still be attributed.

the standard is unrecognisable as the original work; basically, if someone who has seen the original work sees your work and can tell it's a copy, no copyright. If they cannot, you have your own copyright.

Re:

poor concept at best, awful at worst. people have fantastic abilities to do fuzzy logic in their heads. A computer may not be able to tell two images are related because every single pixel could be wrong, every color could be off, and any simple image transformations may not be able to recreate the new one, but a human could look at it and be like, yea, I can see the original. Or even worse, they could not notice it, but then once someone points it out, it's all they can recognize. Plus, if you're completely rendering the original's presense as zero, what's the point anyway? "You can have art as long as all your inspirations and ideas are covered up enough that we can't figure out how you possibly thought of this new idea."

Here is where I have a problem with automatic copyrights being granted for things. In my opinion, the new photo expresses creativity and should be copyrightable, whereas there is nothing creative about the first. Sure it's a nice picture, but copyright should require some kind of creativity to be involved.
There's nothing creative about just pointing a camera at something and clicking the trigger like most of the world does. Monkeys can do it as been discussed here before. If the photographer in some way creates the illusion I'm good with it, but if someone just snaps a quick pic of the sunrise, a speed limit sign, or a bug... to me that's the same as reporting facts, which are not copyrightable.
Someone, I'm sure will now bring up the "expression" argument, but even so, the intent and the expressions have changed in this case to the point where I don't see it applicable. Besides, even flipped the angle is different and doesn't look anything more than similar to me.

But leaving that aside for the moment, this episode does raise the interesting question of when a modified image is "manipulated enough" by software to become a new creation in its own right.

I'm going to be nitpicky here because... well, that's just what I do. That question isn't particularly interesting at all. Most likely it wouldn't really take all that manipulation for the "remixer" (whoever is directing the software) of an image to have copyright in the new image. The standard would likely be different in different jurisdictions.

But that doesn't matter. It's possible to have copyright in a work and still have that work infringe on the copyright in another work. The real question (which I think is what most people have been discussing anyway) is: when has the image been manipulated enough that it no longer infringes on the copyright of the original image?

The wrong question

I think the "manipulated enough" standard is faulty. In my opinion, to remain true to the purpose and intent of copyright, the standard should be more like that of trademark: is the derivative one that can be easily confused with the original? Would people be likely to forgo the original because of the derivative? It shouldn't be a copyright violation unless people will buy the "copy" instead of the original.

With some works, a trivial change can alter the work completely. In these cases, the trivial change results in a completely new work and is not "in competition" with the original. The original artist is absolutely not harmed, and may even be helped by getting new audiences to investigate the original work.

"We consider under Fair Use Rights the ability to quote from one source for use in a work of our own. Actually using the words, whether in or out of context, is normal and done all the time. So how is using a clip of some song, speaker, video or whatever new communication method any different? Why does Fair Use Rights not cover that? When we create an essay, video or song using a clip/quote from some other source why is that a problem as long as the source is (listed) in the bibliography."

So why cant we just consider sampling like any other Fair Use Rights usage? Since any subjective analysis is complex and often arbitrarily applied.

Re:

not true -- collage is still fairly prominent in visual art, and the main things that keep it safe are the de minimis doctrine and the broader fair use argument (not just news/parody)

From a 2006 collage ruling:

Most importantly within the “purpose and character” factor, the court analyzed the transformative nature of Koons’s work. Courts will not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” However, in this case, “Niagara” passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”

The transformative nature of Koon’s work dwarfed other issues, such as the commercial nature of the work and any bad faith allegations against Koons. Indeed, the court even minimized the parodic justification. The court did address the confusing and oft-criticized distinction between parody and satire (“parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) before stating that “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.”

Even if the contest image were to be considered fair use, it is still a derivative work of the original image, but a non-infringing derivative work. Moreover, the transformative aspect of a derivative work is only one part of the fair use analysis. So you can transform a work to an extremely high degree and still fail on a fair use claim- that is, you would have a highly transformative but infringing work

yesh

Stupid kid it has to be manipulated far far more then that, for an image to be manipulated enouh it has to damn near look like something else completely. If your going to use another persons image as your spring board for a new image then erase everything but it's outline, save the outline, then change that too, fill it in with your own stuff.

But honesty if you can do all that why not make your one picture free of copyright problems? Heck of a lot less steps you have to go though. Don't be lazy.